Voting rights preclearance should be a punishment, not a prophylactic
Anthony Marcum at R Street recently released an analysis of HR 4, commonly known as the “John Lewis Voting Rights Advancement Act,” which did a fantastic job laying out the history of the Voting Rights Act (VRA), the impacts of the Supreme Court’s 2013 Shelby County decision and the ramifications of enacting HR 4 into law.
In doing so, Marcum points out that HR 4 would reestablish a regulatory tool known as “preclearance,” which, prior to Shelby County, required certain states and local jurisdictions with a history of voting discrimination to seek permission from the Department of Justice (DOJ) or from the federal district court in Washington, D.C., prior to making changes to their election laws.
Under HR 4, this mechanism would be expanded far beyond its scope under the original VRA. Specifically, preclearance would not only apply as a protective measure against bad actors but it would also apply to every jurisdiction seeking to modify laws that impact certain “covered practices.”
These covered practices are expansive and largely focus on changes that may weaken the power of minority voters, such as transitioning from districts to at-large seats or reducing voting hours or polling places in areas with substantial racial or language minority populations. However, it also includes practices that are not inherently concerning such as implementing or modifying a voter ID requirement.
While it is entirely reasonable to worry about the impact that new laws may have on minority voting rights, HR 4 creates a fundamentally unfair system where even small adjustments will be subject to federal scrutiny. The result is a system that locks jurisdictions into their existing laws, regardless of how they fit in within the context of election laws nationally.
As an example, if Massachusetts, a state with no voter ID requirement, enacted the exact same voter ID law as neighboring Rhode Island, it would trigger federal review. One would hope that the federal government would appreciate the context of proposed changes, but the result could be that a law in place in one state may be considered impermissible on the other side of state lines.
In addition to this absurd outcome, HR 4 may also result in arbitrary outcomes by granting too much power to a political appointee, namely the U.S. Attorney General. Under HR 4, the Attorney General holds the power to object to a covered practice and trigger the arduous process of judicial review. This is particularly concerning due to the volatility of the position. In just the last twenty years, eight different individuals have served as Attorney General, with each transition in presidential power bringing with it a substantially different approach to the position. By giving the Attorney General oversight of covered practices across the country, HR 4 would strip state and local jurisdictions of control over their own elections and subject them to shifting political winds.
Finally, HR 4 inappropriately sends the message that certain changes in law are inherently suspect. For example, empirical research into voter ID provisions should alleviate any concerns about racial bias or discriminatory effect. In fact, states implementing voter ID may see an increase in minority turnout in the subsequent elections. In spite of these findings, HR 4 sends the message the voter ID is racially discriminatory.
In general, HR 4 is a good-faith attempt at fixing the holes in the VRA left by Shelby County. States and localities with a history of discriminatory practices should be subject to heightened federal scrutiny. Unfortunately, it goes too far by creating unnecessary and unfair nationwide preclearance for covered practices. Preclearance is burdensome and prone to over-politicization, and it should be used solely as a punishment and not as a prophylactic.
Image credit: steheap
